A CRITICAL EVALUATION OF THE PROCEDURE FOR RECOVERY OF PREMISES UNDER THE VARIOUS RECOVERY OF PREMISES STATUTES IN NIGERIA

A CRITICAL EVALUATION OF THE PROCEDURE FOR RECOVERY OF PREMISES UNDER THE VARIOUS RECOVERY OF PREMISES STATUTES IN NIGERIA

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INTRODUCTION

1.1       Background of the study

With daily explosion of the Nigerian population, there is a corresponding need for houses to accommodate this growing population. Therefore, it has always been the need for individuals, businesses and governments to build and rent or rent houses to fill that void. These houses could be used for residential or commercial purposes. This made it imperative for regulating the relationship between landlords and tenants to avoid arbitrary increments in rents, illegal expulsion and illegal detention on the premises. The local recovery procedure is largely governed by laws[1].

In the lease, Landlord hands on exclusive possession of the property to the lessee for an agreed period of time, in exchange for payment of rent; on expiry of the lease period, the exclusive possession of the property back to the owner.

On the other hand, it should be noted that to the extent that the property back to the owner, there is still a procedure for the recovery of this property of the tenant. The landlord can not without using the means provided by law and evicts the tenant from the property. Without a doubt, it has been charged by a few quarters that the laws for the recovery of premises tend to be more protective of the tenant, the landlord; However it is important to note that the expulsion is in accordance with the means legally employed will not prevent an employer to repossess his property[2].

Therefore, an owner who wishes to recover its premises from a tenant must comply strictly with the provisions of these laws.

In the lease, the hands of owner exclusive possession of the property to the lessee for an agreed period of time, in exchange for payment of rent; on expiry of the lease period, the exclusive possession of the property back to the owner. It should be noted that, insofar as property Returns to owner; there is still a procedure for the recovery of this property of the tenant.

Land in urban zones in Nigeria is uncommon. Everything men need, however numerous can not bear the cost of it. The forces of the market supply and demand would give the owners a negotiating advantage over their tenants. This would go against contemporary notions of social justice and public policy. Therefore, the laws have been used to tip the scales in favor of the tenant. Protection granted to tenants by the different recovery of premises and rent control laws.

Originally, the main law for the recovery of the premises under a lease was terminated recovering local ordinance. With the advent of Lyttleton Constitution, a federal structure was adopted to Nigeria, following on which the different regions have their own legislatures. Each then reproduces the original prescription region[3]. In 1968, with the creation of twelve states the four regions, each of twelve states have inherited all the laws in force in the region from which it was created. Subsequently, as more states were created, the various acts enabling provided applicable laws of State in which the new state was created to implement the new mutatis mutandis to the state

As regards the applicable law, but with the omission of the Laws of the Federation of Nigeria 1990, recovery of the Premises Act and the Rent Restriction Act, which once managed recuperation of ownership of local non-residential and residential in the federation, respectively, there are more no federal law regulating the recovery of possession of the premises. Each state now has its own law on the recovery of premises, although all are similar in terms of the recovery procedure. In some states of Nigeria, one law covers both residential and non-residential premises and others are separated laws. However, because of the premium placed on the topic of recovery of residential premises, most states of the federation have separate laws governing residential premises.

As mentioned above, the procedure for recovery of possession of the premises is related in all states apart from for slight differences not in fact correlated to the procedure itself. These variations will be discussed where appropriate. For the purposes of our discussion in this article, the focus will be on the technique for recuperation of ownership of private premises and for convenience, reference will be our main tributaries, "Lagos 10 Abuja11 laws[4].

As a rule, the Occupancy Act Lagos assumes a noiseless part in deciding the terms of a contract or manages the behavior of the gatherings in that. This is the restrictive right of the parties. As long as the parties find acceptable contractual terms, the law will not interfere and enforce the terms. The application of the strict use a relationship landlord / tenant, it would mean that the owner is free to leave his property on any terms that it considers appropriate. It may set the duration of the lease, indicate the desired rent and payment intervals and can terminate the relationship and repossess the property in any way he chooses, without any restriction of the law.

These broad discretions are prone to abuse of any owner and could be detrimental to the interests of tenants. It therefore becomes imperative, in circumstances such as those of the law to eliminate this imbalance by making procurements overseeing the rights and commitments of the contracting parties and, in the case of an owner, limit the rights on the property once that is granted to a tenant.

The new Lagos Tenancy law generated considerable public interest since its adoption, much about the question of advanced rent that the law frowns. Article 4 of the new law, it is illegal for a landlord to require or receive a rent of more than one year at a sitting tenant annual , six (6) months at a monthly sitting tenant and one year of a new or a so-called tenant. It is also illegal for new and offer tenants to pay rents beyond a year.

Regarding competent court, the relevant legislation of each state prescribes the jurisdiction to hear questions of recovery. In some states, rent tribunals are set up for this purpose and magistrates' courts or traditional courts are excluded. In other states, the magistrates’ courts retain jurisdiction. In all states, however, the High Court has jurisdiction over issues of recovery! However, even at that there is a deliberate attempt by certain laws to discourage the start of the action in the High Court where the case is such that it can be judged by the trial court. Someone could find this position in Abuja and Anambra state, where it is normal that the expenses of such activity won't be recompensed to the High Court for an amount greater than what is recoverable in the Magistrates Court. Exceptions to this rule are where the action is a claim in good faith duty under Article 5 of the relevant laws and where a question of law is involved, which is recommended to be tried by the High Court.

In Recovery Procedure, generally, through the precepts of Nigerian law, the landlord can evict the tenant if he is in debt or not throwing it out of its premises. Legislatures in return for our conservative Act land use adopted series of tenants-friendly laws and laws. A tenant can be evicted from his apartment, unless there is strict compliance by the owner with appropriate recovery of local law. A diligent tenant before agreeing and signing a rental contract should carefully read and understand in detail the provisions of its agreement documents. Better yet, the counsel may be sought to help interpret the reading and content of the agreement. It is worth recalling the law does not and would not care to know that the tenant did not understand or never knew the law before signing his contract. When a tenant signs a legal agreement that limits his rights; it will be bound by such an agreement in the absence of any element of vitiating. The procedure for recovery of possession of the premises as indicated above is strict and technical and a violation of it can be fatal to the whole procedure[5]. There are basically four major steps for the recovery of premises including:

i) the meaning of the statutory notice;

ii) introduction of an action before a competent court;

iii) the hearing of the action and the proof of ingredients required by law and

iv) a judgment / order of possession.

1.1        Statement of Problem

However, by far the greater range and perhaps threatening the rights principle statutory tenants to short change, is the misconception that the landlord may recover possession of the premises of an annual tenant who is late rent by merely serve with seven days’ notice of the intention of the owner to repossess under section 17 of the rent control and recovery Act CAP residential premises. R5, laws of Delta State[6], without first ending its lease by serving the notice required to leave. This principle was adopted and sanctioned by trial courts seized with jurisdiction over the recovery of local issues in some parts of the country. This practice, which can trace its origins to the common law or one of our local recovery Statutes, is mainly due to a misunderstanding and misapplication of the decision widely criticized by the Supreme Court in the case of V. Odutola PAPERSACK NIGERIA LIMITED[7]. Judgment has attracted much criticism since it was made by the apex court. Prof. Emeka Chianu, after a critical analysis of the judgment, summarized his dissatisfaction with it in the following terms:

"As the Supreme Court Odutola has an important implication for the property market. On balance, it must be regarded as a disappointing decision. It is fundamentally unhealthy and unforgivably misleading because key issues are not analyzed in sufficient depth "[8].

One may not agree with much of the finding of the learned professor, for reasons to be explained shortly.

However, a second look at the lead judgment in that cases prove that the equipment conclusion is reached in the case may not be far from the case law in this area. But before going further, the facts of the case are as follows:

The litigants let the premises in question to one Thoresen & Co. (NIG.) LTD.

For a period of five years to end 31/05/80, as is clear from the part P1, a letter admitted. Before the lease deadline, Aboderin chief, who happened to be the owner of both Thoresen & Co. (NIG.) LTD and Papersack Nigeria LTD, Wrote to the appellants for a two-year extension of the original lease. The request was acceded to. The demand letter was received in evidence as Exhibit P2. On expiry of the extended lease Thoresen & Co. (NIG.) LTD., on 31/12/82, the respondent (Papersack Nigeria LTD.), without the knowledge and consent of the appellants, took possession. The appellants subsequently accepted the annual rents of respondents for the use and occupancy of premises pending when the parties would agree on a lease. In 1985, an attempt by the appellants and the respondent failed to create a lease and when the respondent was overdue annual payments, the appellant continued to repossess the premises from him.

Counsel for the appellants argued that the respondent , who came originally in the occupation as an intruder became a tenant at will after the expiry of the extension of the duration of 31/12/82 and that 'there was no agreement that could convert the lease at will relationship between the parties to an annual lease. He further argued that even if the respondent has been served with notice of six months to leave, he was only entitled to one week's notice to quit as tenant’s option agreement. He then urged the court to hold that the notice was valid, even if the excess. Counsel for the other argued that the respondent became a tenant annually by payment of annual rents to callers. The court did not accept that there was an annual lease established by the parties and concluded that the Respondent was a tenant at will. NIKI TOBI JSC[9] the following reasoning:

"Let’s take the issue of a new hire here. An act of a new hire is a conscious and specific that should be a subject of bilateral conduct on the part of the owner and the tenant. By law, parties must clearly and unequivocally express their willingness to enter into the new lease at the end of the old. As a specific act of the landlord and the tenant, it can not be a matter of conjecture or speculation, an agreement or contract is a bilateral matter that needs ad idem party, therefore, when the parties are not ad idem, the court as a matter of law that the agreement or the contract has not been duly made between the parties ".

A rental will arises when a tenant occupies premises with the owner's consent for an indefinite period. Either party may bring the lease to an end at any time. It can be created expressly[10] or implicitly. An implicit rental will be created when a tenant holds over with the consent of the landlord after the termination of the tenancy. [11]An implicit rent at will can also occur when the tenant enters into possession pending the granting of a formal lease and Odutola V. PAPERSACK (NIG.) LTD. seem to fall into the latter category. It is the general rule that a tenant who owns more with the owner's consent is a tenant at will, but when it starts to pay periodic (weekly, monthly, quarterly and annual) rents, it becomes a periodic tenant and possession can not be torn from him without serving appropriate notice to quit. But this principle is not absolute, that the courts are now inclined to look at the facts of the case to see whether the parties intended to create a periodic tenancy or something.

These position accessories on a long line of English authorities decided, with some of the authorities as far back as the 19th century[12].Thus, in JAVAD v. Aqil, [13] NICHOLLS, LJ, reading the court judgment, identified the underlying principle to be applied, the principle of which is not significantly different from the motivation of NIKI TOBI JSC cited above. In the words of the court:

"... A rent springs from a consensual arrangement between two parties: one person gives another the right to possession of land for a shorter period than he, the grantor has in the land Extent of. right so granted and accepted depends primarily on the will of the parties. Where arrange the terms of a proposed lease, and the planned occupant is left in possession or allowed to remain in possession in advance, and in anticipation of the terms agreeing, that the parties have not yet accepted the terms will be a factor to consider in determining them. It will often be a significant factor. often in such cases, a sum called " rent "is paid both in accordance with the terms of the proposed lease: for example, quarterly in advance, but, depending on all the circumstances, the parties should not be expected and have agreed that the prospective tenant must be a quarterly inhabitant. They can not sensibly be regarded to have acknowledged that he must have a periodic tenancy, with all the consequences, at a time when they are still no agreement on the terms under which the tenant applicant must have the possession under the proposed lease and when it was allowed to enter or remain in possession merely as a provisional measure pending that all will be regulated and legalized in a timely manner when the terms are agreed and a formal lease granted. "[14] Odutola V. PAPERSACK NIGERIA LIMITED was daintily regarded as working looking into it of a yearly rental. For example, NIKI TOBI, who read the judgment of the court, noted that:

"... The evidence shows that the parties began with an annual lease that eventually became a lease at will by law. I agree that the rent will be converted into a yearly rental and vice- versa, the position in this case is that it is the annual rent which was converted to a rental will and here, I want that when the annual lease expired in 1980, the desire to rent started and "hold on" started immediately. "[15]

With the greatest respect, there is nothing that can be drawn from the facts of the case to support the conclusion above. What annual lease was the court? However one that was never created because there was not ad idem between the parties, or the fixed term of five years between the appellants and Thoresen and Co. (NIG.) LTD. which ended in 1980, but was extended for two years until 1982?  The facts of the case that the respondent entered into possession of the premises in December 1982 therefore no annual lease would have been created with it in 1980[16].

The facts of the case seem to be more in line with the will to hire into existence as a result of the respondent get hold pending approval of a formal lease.

1.3       Objective of the Study

1.      To see a law ( s) entered on Rent Control and Recovery of Residential Premises Edict and the various problems facing it and why it is neglected over the years

2.      To review the effectiveness of this law and the relevant legislation that regulates the relationship of landlord and tenant.

3.      To make suggestions on the best way these laws can be better implemented and made ​​more efficient.

1.4         Literature Review

Since 1920, when the issue of rent control was discussed first in the colony Lagos and Lagos State afterwards fifty-three years later, no complacency balance has been established between owners and continues tenants. Landlords to cling to the old concept of freedom of contract, a concept reinforced by the forces of demand and supply in an open market and unnecessary restrictions by the state was made. For tenants on the other hand, the 20th century ushered in a new era in contractual relations, the movement of the contract status reinforced by the international crusade against exploitation and inhumane treatment of a party to the contract that does not correspond to state of the other, seem provide tenants with defense for state mediation.

In advanced countries where rent is regulated as the United States of America, France and Germany to name a few, the argument is usually that it is the responsibility of the State to help the less privileged tenants and protect against greed and rapacity of the owners want to exploit their weak bargaining power to extract unfair rents[17]

The argument is strengthened in the third world countries by the bare fact of the housing shortage particularly in urban centers coupled with the lack of social security, including the provision of housing for the less advantaged. Yet, progressive enactment on rent control in Lagos State before 1997 proved an ineffective defense against the crushing effect of excessive rent. The popular observation is that the Government can not control the individual properties on rent and housing rent as the price of raw materials on the market is technically and must meet the requirements of the operation on the market of supply and demand. With the rising cost of construction materials and the inability of successive governments to shelter the masses at affordable rents, it is expected that more people chase fewer accommodation, opening room for the cut-throat competition by potential tenants for housing and sometimes their financial risks and perils[18].

The lack of an effective monitoring team, the high level of illiteracy, and a general lack of awareness among the population laid the masses in the cruel hands of the owners of Shylock and made their tenants complain situation calm. In the recent period, particularly in urban centers, there have been many complaints of abuse, oppression and massive exploitation of tenants by some greedy owners who think the tenants in their premises are slaves, outside exorbitant rents they charge and receive before letting them in, some owners go to the extent of monitoring or even restrict the movement of tenants in their premises. Property law showed great concern and enthusiasm for the relationship between landowners and tenants as the law tried to regulate all aspects of the relationship of creation and even the recovery of local tenants. But if the successive government in the past tried and fail in their attempts to regulate the rent and in 1997, another plan deemed fit to enact or re adopt a rent control ordinance, maybe rent control mechanism requires revaluation to put at rest the controversy surrounding the introduction and maintenance of the institution on the owner and tenant relationship. But the question remains, that this edict was a failure as others in the past?

Whatever has the supreme command in the history of the first rent. Integer adipiscing room, from the creation of the social question in the state in 1970 several attempts were made escalating rent. The same was in the beginning of the battle it was proposed, from Brigadier General Mobolaji Johnson's management, Rent Control and Recovery No a Proclamation 9 of 1976. The payments are to be permanent residential premises and are called "signs, and the rent" for a wide range of settlement. Furthermore, after the wind, and as an obligation are geared to reducing the pressure of what is paid to the abdominal cavity, which was in their sit amet massa. And the other is it suspended by a decree in  the title of " private premises Rent collection and control (Amendment) writing of the decree that in 1986 the power of 21 March, 1986. That part of 4 the amendments in the Law, indeed, as she has done, and of the commandment 14 of the No.9 1976. by means of that which was the declaration of the federal government in the harmony with the economic period of the war since, then, substance is not in the state of love is capable of rent. This does not follow, because of the lack of adequate to the sea to reach the base[19]. The issues resulted in hyper-inflation and the effect of grazing on the landlords of them not wanting to provide a suitable environment for the implementation of the cooperation provided by the decree of execution.  The third try was in 1996. It was in this year that inspiration excited decree provided for the establishment of tribunal’s estate firm signs a lot of determination and control of the premises, incidentally that belonged to other uses. As the judgment was not taken back to 1 November 1981 edict of 1995 would come into force, but not implemented. It restores rent courts that were abolished in 1981. This edict was supposed to take effect from 1 December 1995, but was never implemented. The unfavorable economic climate and the absence of appropriate mechanisms for implementation try not to make a conductive domain for the departure of this order. This edict was completed on paper. The last and the last rent control provision were contained in the Rent Control and Recovery of Residential Premises Edict No. 6 of Lagos State, which entered into force on 21 March 1997. At the end of the 1990s again revisited the turbulent zone of landlord and tenant relationship in a society where different interests competing for the recognition and protection. This was the edict available to date if it disappeared over the years because of the change in the seats of state power.

An owner who wants to establish or terminate the lease and repossess his property to a tenant for any reason shall observe due diligence and legal process to reach its goal. Self-Help is an extra-judicial means to enforce or protect a right such as the use of reasonable force to eject intruders. When the owner uses self-help, it must be legal if it is criminally responsible for his actions. For example, if an owner in an effort to recover its premises from a tenant takes part in a self-improvement by evacuating the entryways, windows and even the roof of the building is occupied by the tenant, he took the law in his hands by using the self-help or tactical option to eject the tenant. The repossession of the premises of a tenant in lawful occupation by an owner can not be obtained by the order of the Court in accordance with the procedure otherwise, the owner can be held responsible for the forced ejection intrusion tenant. For Ihenacho Vs Uzochukwu, possession was obtained by an affidavit by the owner and approved for possession by a magistrate meaningless legal advice or a writ.

The owner was liable for Trespass to eject the tenant on the basis of the opinion of Affidavit to quit. This is an important notice in the local recovery process and where there is no fault in his delivery, content or service, such vitiate the entire procedure were A notice to be issued as B, C or D. When the notice is issued by a lawyer or agent, it must be in the form C and must contain the following: that the Tenant should quit and deliver up possession of the premises;

1.      the type of Tenancy (i.e. weekly, monthly or yearly etc).

2.      the date the Notice to Quit i.e the expiration of the tenancy; and

3.      the date the Notice to quit is to expire The parties to a Tenancy

4.      Agreement ie the owner and the tenant must determine the nature of Notice required to terminate the Tenancy[20]

However, under various laws on the recovery of premises, no agreement exists between the parties; the rent is determined by the following length of notice 1.Tenancy-at-Will [ie weekly rentals] -in the entitlement to 7 days or a week opinion 2. monthly tenancy shall have one (1) month Tenancy Notice 3.Quarterly is entitled QUAR Notice quarter (ie 3 months) 4.Yearly Tenancy will be entitled to 6 months Opinion Procedure for the recovery of the local premises of the recovery process is technical and strict and any breach will result in nullity. The process begins with the meaning of the statutory notice. Two legislative opinions should be served to the tenant who are: a notice to quit; and the opinion of the owner’s intention to repossess. At the expiration of the notice to quit and the tenant fails to vacate and surrender ownership of the premises, a second notice will be served on him or the person in possession ie owners Notice Intent to repossess In addition, when seven (7) days Notice is not served on the tenant, the Court has no jurisdiction to hear the case.

Note that the services of statutory notices are prerequisite for the institution of an action to recover possession of the premises. When appropriate notices were served and if at the expiration of the notice to quit, the tenant must hold more and the date of rent arrears until possession is given up, the rent payable is known as the mense result, and that would be payable by a person or a tenant who illegally holds on the land or premises. It is interesting to note that the relationship between the owner and the tenant is like cat and dog. The recovery of local laws in Nigeria favors the tenant more as such, landlords should be cautious in dealing with the tenant to avoid taking laws into their hands by engaging in self-help practices to forcibly eject the tenant and therefore incriminate him-even through such action[21].

1.5        Conceptual Clarification

The term Owner means a person who owns property and allows another person to use it for a fee. The person using the possessions is named a tenant or occupant[22]. The treaty between a landlord and a tenant is called a lease or rental agreement. There is no denying that most tenants, probably because they are generally more numerous than their owners in a given room, habour not always subtle dislike for the owner to be unapologetically imperialist and sometimes on its premises .

At common law, the first forms of landlord and tenant relationship in the file has its origin rooted in medieval law of the land and was the only contractual origin. This concept was born in the late 21th century, due to the realization to make money on developed / land ownership.

Over the years, however, certain principles and guidelines were developed by mainstream of laws, portraying the way of regulation and the relationship of Landlord and Tenant. Most federal states have recovery of neighborhood laws representing the relationship or the idea of rental housing. For example, there is rent control and recovery of local law, Abuja and Abia States, Rent Control and Recovery of Premises Edict presidential 1997 Lagos State. In Rivers State, the applicable law is the recovery of local law, CAP 109, Laws of Rivers State 1999. We also have other legislation, for example the law of property leasing.

In addition to these lease laws, there Constitution of the Federal Republic of Nigeria 1999, this is standard on the ground and what provisions replace the provisions of any Act of the law. If one of the provisions of the various local recovery Laws of any State conflict or interfere with the procurements of the Constitution, the Constitution might prevail over and above any other law and this law is inconsistent and void.

Also, there are judicial precedents commonly known cases are decisions of the superior courts of guidance documents and binding lower courts to decide disputes involving landlord and tenant.

Finally, there are other legal provisions that cover employers committed under the statutory laws. These provisions are not entirely separable obligations of an owner or a tenant in their relationship, which establishes rules governing major contract as a source of landlord and tenant law.

The proprietor and the inhabitant contemporary relationship stems from the relationship between lord and vassal. However, today the owner is the owner of the property, not, as the feudal lord, just the manager. The tenant is similar to the vassal because the tenant does not have the property, but is allowed to use for a fee.

The owner and tenant relationship usually refers to a way of life. In this law, respect for the owner and the tenant differs from the Lease Act. In an owner and tenant relationship, the parties are often referred to as lessor (owner) and the lessee (tenant). Without a doubt, a lease is an agreement that makes the same relationship as that between a landlord and tenant the landlord owns the property and allows the lessee to use it for a fee. However, the lease law is not necessarily concerned with ways of life. A lease might, for instance, identify with the utilization of a good or service. Because lifestyles are essential to human existence and tenants relationships are treated differently leases.

Typically, an owner and tenant relationship exists if:

1.      the owner agrees to the occupation of the premises;

2.      the lessee perceives that the proprietor has title to the property and a future enthusiasm for the property;

3.      the owner has title to the property;

4.      the tenant receives a limited right to use the premises ;

5.      owner transfers possession and control of the premises to the tenant; and

6.      lease agreement between the parties[23].

A lease may be implied by law. In other words, the owner and the tenant can ask the right in the absence of a written lease agreement signed between the owner of the property and the individual living on the property. Whether a court will infer a relationship depends on the facts of the case. The court will consider a number of factors, including the owner's consent to the occupation of the property, the duration of the occupation, and the exchange of money, goods or services. The finding of a court that there is an owner and tenant relationship between two or more people is important because the law imposes obligations on both sides in such a relationship.

Conventionally, landlord and tenant law was auspicious to the proprietors. The courts determined debate between proprietors and tenants on the principles of contract and strict property, and tenants were often forced to p


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